ICANN Board Defers Action on New gTLD Guidebook Until a Date Uncertain, While Announcing Intention to Enter into .XXX Registry Contract

ICANN’s Board ended the Cartagena meeting with a contention-free public session that left potential new gTLD applicants and all other interested parties with continuing uncertainty about when — and even if—the new gTLD Guidebook will be finalized and a date certain set for the submission of applications. But it seemed to put in place an endgame for the multi-year struggle by ICM registry to be awarded a contract for a .XXX registry dedicated to adult content.

On new gTLDs, the Board’s adopted resolution states that all the four overarching issues that have dominated the discussion – including the trademark protections for which ICA has striven to assure fair and balanced registrant treatment – have been largely resolved. ICANN staff was directed to take public comments on the proposed Final Applicant Guidebook as well as GAC advice into account as it makes final revisions to the Guidebook. The Board also intends to hold a February retreat with the GAC to address its outstanding concerns with the new gTLD process, and then to make a decision of the launch date for new gTLDs “as soon as possible”.

While on the surface this seems to portend possible Board approval of the Guidebook at the March 2011 ICANN meeting in San Francisco, that is by no means certain as there is no assurance that the GAC’s concerns can be satisfied.

The GAC raised two principal issues at its meeting with the Board in Cartagena. The first was protection of geographic names at the top level. The proposed Guidebook already provides protections for continents, regions, nations and sub-national divisions, and capital cities that go far beyond trademark law (as map names cannot be trademarked, period). We doubt that anyone has plans to apply for gTLDs in the name of every town and village on the planet – and this whole exercise is somewhat ludicrous anyway, as the new protections apply to .France but not .French, to .Paris but not .Parisian, etc. While ICANN has gone down a dubious policy road a workable compromise can almost surely be achieved during the Board’s February retreat with the GAC.

The other issue – trademark protections — is not so readily finessed. The Guidebook already contains provisions that go far beyond the UDRP applicable to incumbent gTLDs. Yet the trademark sector has clearly been engaged in intensive lobbying of GAC members, as was very much in evidence when it met with the Board in Cartagena. What the trademark advocates seem to want in the Guidebook is the original 2009 recommendations of the IRT plus some other things they’ve thought of since. But the IRT process and recommendations brought howls of protest from ICA and many other ICANN constituents, resulting in the creation of the STI-RT to develop a more balanced approach. That STI-RT package was unanimously adopted by the GNSO Council, which is supposed to be ICANN’s policy development body. So any further concessions to the GAC will undermine the GNSO’s legitimacy and bring us back to the same standoff that led to the creation of the STI-RT at the Seoul meeting one year ago.

Perhaps that is why another adopted Board Resolution raises the possibility that final Guidebook approval is by no means assured in the foreseeable future. Speaking to a review process to measure consumer choice, competition and innovation resulting from new gTLDs, it states—

Whereas, if and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN has committed to organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice.

As we presume that the wording of all these Resolutions is thoroughly debated and vetted, we think that the phrase “if and when”, rather than a much more optimistic solitary “when”, has some considerable importance. Its inclusion may be much more than a Freudian slip and is certainly no cause for optimism for any parties chomping at the bit to launch new gTLDs.

On another long-running controversy, the Board declared its intent to enter into an agreement with ICM Registry for its proposed .XXX TLD for adult content. However, this too shall be subject to further consultations with the GAC in February 2011. Given the prior determination of an independent review board that ICM’s application met all the relevant criteria set forth by ICANN, the hallway consensus in Cartagena was that there is a fair chance the contract will be signed prior to the San Francisco – if only to spare the ICANN Board and attendees from hearing the same irreconcilable declarations on Internet porn that have been made for five years running. In any event, it seems likely that .XXX will be added to the root far in advance of any other new gTLDs.

On one final matter, we note that the agenda for the Board meeting listed “UDRP Status Update” as a Consent Agenda matter but that once again, as has been a recurring theme, not a word was uttered on this critical matter.  ICA’s members have set meaningful UDRP reform as a high priority and we intend to push hard for ICANN to set that process in motion in 2011.

Overall, the Cartagena meeting seems to have moved the start of the new gTLD program closer to the goal line, but the goal posts may be moving again.   It also added a new chapter to the evolving role of the GAC in the wake of the 2009 termination of direct US oversight, while leaving unanswered the question of whether the GAC shall be content with a role that, while strengthened, remains advisory in nature – or whether it will seek to elevate its powers to “advise and consent”.

The text of the adopted Board resolutions on New gTLDs, Consumer Choice, Competition and Innovation, and the .XXX Registry are below; all adopted resolutions can be found at http://icann.org/en/minutes/resolutions-10dec10-en.htm. —

New gTLDs: Resolving Remaining Issues

Whereas, the GNSO Council approved and the Board adopted GNSO policy recommendations for the introduction of new gTLDs <http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm#Toc43798015>.

Whereas, staff has made implementation details publicly available in the form of draft Applicant Guidebooks that have undergone continued substantial revisions based on stakeholder input (the most recent version was posted for comment on 12 November 2010).

Whereas, public comment identified four "overarching issues" to be addressed as a threshold for moving forward with the introduction of new gTLDs.

Whereas, the overarching issue of trademark protection has been addressed by measures including the establishment of a Trademark Clearinghouse, a Uniform Rapid Suspension system, and a Post-Delegation Dispute Resolution Procedure.

Whereas, the overarching issue of mitigating malicious conduct has been addressed by including refinement of proposals such as centralized zone file access to reduce potential for proliferation of malicious conduct in the new gTLD space.

Whereas, the overarching issue of root-zone scaling has been addressed through expert consultation and study on the impact of new gTLDs on the stability of the root, indicating that rate-limited addition of TLDs can be implemented without any expected impact on the stability of the root zone system, and that communications and monitoring mechanisms will be implemented: <http://www.icann.org/en/topics/new-gtlds/summary-of-impact-root-zone-scaling-06oct10-en.pdf> [PDF, 958 KB], <http://www.icann.org/en/topics/new-gtlds/delegation-rate-scenarios-new-gtlds-06oct10-en.pdf> [PDF, 1.08 MB] , and <http://www.icann.org/en/announcements/announcement-17sep09-en.htm>.

Whereas, the overarching issue of the call for economic analysis, has been addressed by comprehensive expert consultation and analyses, including reports by CRA International, Dennis Carlton, Michael Katz and Greg Rosston. The latest of these reports, "New gTLD Economic Study Phase II", was posted on the ICANN website on 3 December 2010 <http://www.icann.org/en/announcements/announcement-03dec10-en.htm>.

Whereas, ICANN considers that the solutions developed to address the overarching issues of trademark protection, mitigating malicious conduct, and root-zone scaling substantially reflect the negotiated position of the ICANN community, but ICANN will take into account public comment including the advice of the GAC.

Whereas, with respect to the call for economic analysis, ICANN is in the process of receiving and reviewing public comment, and the Board will take into account that public comment including the advice of the GAC.

Whereas, community discussions on the draft Applicant Guidebooks have successfully addressed numerous issues, but some implementation issues remain.

Whereas, the issue of geographic names has been the subject of substantial consultation with the Governmental Advisory Committee, resulting in substantial change and areas of agreement and compromise. While these changes have been incorporated into the guidebook, discussions are continuing on this subject. ICANN considers the proposed treatment of geographic substantially reflects the views of the ICANN community, but ICANN will take into account public comment including the advice of the GAC.

Whereas, the working group formed to address implementation of the GNSO-recommended policy concerning morality and public order objections made recommendations (the Recommendation 6 Community Working Group), several of which were incorporated into the guidebook, and the working group has clarified the remaining recommendations in a series of consultations with ICANN staff and Board members. Discussions will continue on (1) the roles of the Board, GAC, and ALAC in the objection process, (2) the incitement to discrimination criterion, and (3) fees for GAC and ALAC-instigated objections. ICANN will take into account public comment including the advice of the GAC, and looks forward to receiving further input from the working group in an attempt to close this issue.

Whereas, the public comment period on the English version of the Proposed Final Applicant Guidebook concluded just prior to this Board Meeting on 10 December 2010, with the closure of other comments on translated versions to follow in the order posted, and ICANN will carefully consider all of the comments received.

Whereas, the Board participated in discussions and listened to comment from stakeholders during the meeting in Cartagena.

Whereas, the Governmental Advisory Committee communiqué from Cartagena indicates that the GAC will provide a list of issues that the GAC believes are still outstanding and require additional discussion between the Board and the GAC.

Resolved (2010.12.10.21), the Board:

1.    Appreciates the GAC’s acceptance of the Board’s invitation for an inter-sessional meeting to address the GAC’s outstanding concerns with the new gTLD process. The Board anticipates this meeting occurring in February 2011, and looks forward to planning for this meeting in consultation and cooperation with the GAC, and to hearing the GAC’s specific views on each remaining issue.

2.    Directs staff to make revisions to the guidebook as appropriate based on the comments received during the public comment period on the Proposed Final Applicant Guidebook and comments on the New gTLD Economic Study Phase II Report.

3.    Invites the Recommendation 6 Community Working Group to provide final written proposals on the issues identified above by 7 January 2011, and directs staff to provide briefing materials to enable the Board to make a decision in relation to the working group’s recommendations.

4.    Notes the continuing work being done by the Joint Applicant Support Working Group, and reiterates the Board’s 28 October 2010 resolutions of thanks and encouragement.

5.    Directs staff to synthesize the results of these consultations and comments, and to prepare revisions to the guidebook to enable the Board to make a decision on the launch of the new gTLD program as soon as possible.

6.    Commits to provide a thorough and reasoned explanation of ICANN decisions, the rationale thereof and the sources of data and information on which ICANN relied, including providing a rationale regarding the Board’s decisions in relation to economic analysis.

7.    Thanks the ICANN community for the tremendous patience, dedication, and commitment to resolving these difficult and complex issues.

Consumer Choice, Competition and Innovation

Whereas, the area of consumer choice, competition and innovation is one of the strategic areas for ICANN in the 2010 to 2013 strategy plan <http://www.icann.org/en/strategic-plan/strategic-plan-2010-2013-19feb10-en.pdf> [PDF, 491 KB]

Whereas, ICANN has committed to promoting competition, consumer trust and consumer choice in the Affirmation of Commitments <http://www.icann.org/en/documents/affirmation-of-commitments-30sep09-en.htm>

Whereas, if and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN has committed to organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice.

Resolved (2010.12.10.30), the ICANN Board requests advice from the ALAC, GAC, GNSO and ccNSO on establishing the definition, measures, and three year targets for those measures, for competition, consumer trust and consumer choice in the context of the domain name system, such advice to be provided for discussion at the ICANN International Public meeting in San Francisco from 13-18 March 2010.

ICM Registry Sponsored Top-Level Domain – .XXX

Whereas, on 24 August 2010, ICANN posted for public comment a Revised Proposed Registry Agreement submitted by ICM Registry following negotiations with ICANN staff, along with Due Diligence Documentation submitted by ICM Registry <http://www.icann.org/en/announcements/announcement-24aug10-en.htm>.

Whereas, on 28 October 2010, the Board received the Summary and Analysis of the Public Comment and noted that entering into the proposed Registry Agreement with ICM may not be consistent with some of the broader-reaching communications from the GAC, and the GAC and the Board could benefit from consultation.

Whereas, the Board passed the following resolution on 28 October 2010:

RESOLVED (2010.10.28.18) the Board Chair shall engage the GAC Chair on developing a process for consultation with the GAC on its advice about the ICM application.

Whereas, during the ICANN meeting in Cartagena, the Board Chair and GAC Chair met twice, and there was an additional meeting between members of the Board and GAC to discuss potential process steps, creation of a process consistent with the ICANN Bylaws, and other matters relating to issues of potential conflict.

Resolved (2010.12.10.23), ICANN Board hereby determines that it intends to enter into a registry agreement with ICM Registry for the .XXX sTLD, subject to GAC consultation and advice, and hereby invokes the consultation as provided for in ICANN Bylaws section Article XI, Section 2, Paragraph 1(j).

Resolved (2010.12.10.24), staff is directed to prepare within five working days a draft process for consulting with the GAC when necessary pursuant to ICANN Bylaws section Article XI, Section 2, Paragraph 1(j); the process is to be provided to the Board for comment, and the Board Executive Committee shall approve as soon as practicable; once approved, the process will be forwarded to the GAC in order to have an agreed process for use in the consultations with the GAC in February 2011.

Resolved (2010.12.10.25), in response to the reference in the GAC’s Cartagena Communiqué regarding the Board’s rationale for selecting the items that ICANN determined might be in conflict with potential GAC advice: the Board indicates that it agrees with staff’s assessment of the conflicts with potential GAC advice relating to the ICM application, and directs staff to communicate the Board’s determination to the GAC.

Resolved (2010.12.10.26), the Board directs staff to communicate with the GAC on additional information that might be supplied to the GAC as indicated in the GAC’s Cartagena communiqué.

Comments are closed.